Thinking | 3 September 2014

Will challenges – challenging times ahead

​Will challenges, or testator family maintenance claims, have been one of the most hotly debated areas in Victorian succession planning law in recent times. Currently in Victoria, there is no limitation on who can challenge a deceased’s Will.

Under proposed changes contained in the Justice Legislation Amendment (Succession and Surrogacy) Bill 2014, restrictions will be placed on those people who can make a claim, reducing the class of potential claimants.  The proposed changes are based on recommendations coming from the Victorian Law Reform Commission’s 2013 Succession Laws Report. If passed by Parliament, the draft legislation is to take effect by 1 July 2015 at the latest.

 

Current position

 

The current Victorian laws do not require any blood or familial connection to a deceased to make a claim, and allows anyone to potentially make a claim.  The Courts instead focus on whether the deceased had an obligation to make adequate provision for the proper maintenance and support of a claimant, and if so, whether any provision under the Will was adequate.

 

Proposed changes

 

Eligible Claimants

The draft legislation prescribes that only an ‘eligible person’ can make a claim.  An eligible person is defined to include:

  • the spouse or domestic partner;
  • a child, stepchild, or person who believed they were a child, provided that person:
    • is under 18 years or age;
    • is between 18 and 25 years of age and is a full time student; or
    • has a disability; and
  • a former spouse or domestic partner who would have been able to commence proceedings under the Family Law Act 1975.

Other Eligible Claimants

There is a further class which includes a child, stepchild, or person who believed they were a child, that are not included in the above definitions, a grandchild, a registered caring partner, a spouse or domestic partner of a child of the deceased, and a member of the deceased’s household.

These people can make a claim provided they can also demonstrate they were wholly or partly dependant on the deceased for their proper maintenance and support at the time of their death.

 

Practical effect

The new regime, if implemented in its current form, would exclude many current claimants from making a claim.

Based on our experience, many claims are brought by independent adult children, as well as grandchildren. Under the new regime, those people would also have to satisfy the Court that they were wholly or partly dependant on the deceased if they were to make a successful claim.

 

Other important factors

 

Currently, a claimant has six months from the date of grant of probate is made to make a claim for provision. This time period will be preserved under the new regime.

The draft legislation proposes to allow people to release their rights to make a claim where they have obtained independent legal advice regarding that release.  This could provide certainty to Will makers who, for example,  want to make gifts during their lifetime to family members on the basis that person will not make a claim for provision on their death or make particular limited provision for a second spouse or partner.

 

Current and new claims

 

The proposed legislation provides that any claim commenced before the draft legislation takes effect will be governed by the existing laws.

 

Where to from here?

 

The Bill is scheduled to be debated in the Legislative Assembly on September 3.  We await with interest to see if the amendments proposed will be passed given the current caretaker mode of government.

 

Our experience

 

Hall & Wilcox Lawyers have extensive experience in Will challenges. We have acted for claimants seeking further provision from an estate, acted for estates in defending claims, as well as advising on intestate estates where there is no Will. Our experience has shown that each case is unique and dependant on its own facts. We can assist in providing advice on making or defending claims, and discuss any concerns or questions regarding a claim.

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